As surely as the sun will shine, expect solar panels in Pennsylvania to increasingly draw controversy as plans for them grow in size, scope and frequency.
Most municipalities throughout the Lehigh Valley lack ordinances regulating solar panels, and they’re being caught flat-footed when someone approaches them with plans to install them.
With no defined area where they’re allowed, how big they can be and what use they fall under for zoning purposes, the results have been mixed.
In Forks Township, a proposal to place 26,000 solar panels on Crayola factory property sailed through the Planning Commission and was rapidly approved by supervisors.
Not so for the Northampton Area and Nazareth Area school districts, whose plans to build solar farms at Lehigh and Lower Nazareth elementary schools were rejected for the same reason: Districts are in the business to educate students, not run power companies.
Both projects involve leasing district-owned land to a power company in exchange for receiving reduced energy prices. The power companies, MetroTek in Northampton and Kenyon Energy in Nazareth, would lock the districts into long-term contracts.
In the minds of officials, that makes the solar farm essentially a second business and not, as attorneys for both districts argued, an “accessory” to the school.
To put it another way, Northampton Area’s proposed 5,200-panel solar farm constitutes a “second primary use…You cannot have two principal uses on one property,” Lehigh Township Zoning Officer Laura Harrier said.
Said Lower Nazareth Township Manager Timm Tenges of Nazareth Area’s plan to build a 1,000-panel solar array: “They’re essentially building a generating station.”
Northampton plans to appeal Lehigh Township’s interpretation of the law to the township’s Zoning Hearing Board and the Nazareth district is suing Lower Nazareth. In the suit, filed in Northampton County Court, Nazareth and Kenyon Energy claim supervisors used a “blatant falsehood” to reject the proposal.
Whether a solar energy is a “principal” or an “accessory” use is at the heart of a debate that could reach Pennsylvania’s higher courts in coming years as municipalities grapple with alternative energy systems, whether it’s solar, wind turbines, geothermal systems or whatever else comes along.
The question is, said Phil Ehlinger, executive director of the Pennsylvania Association of Zoning Officials, is a solar energy system a “customary and incidental” as the zoning law defines an accessory use? Customary implies longevity, but alternative energies are a recent technology, which complicates the issue, Ehlinger said.
“If it’s new, how can it be customary?” he said. “Whether or not it’s incidental is in the eye of the beholder.”
That question is popping up all over the country, as school districts, corporations and residences rush to claim millions of dollars in grants and rebates the federal government earmarked for alternative energy projects.
How one court ruling in Indiana defined “accessory” versus “principal” could set a national precedent.
In September, the Indiana Court of Appeals court ruled against neighbors objecting to a wind turbine in Warrick County and determined the project was indeed an accessory. Prohibiting its construction, the court said, would discourage the development of alternative energy.
“We’re just seeing the beginning of this,” Ehlinger said.
Some municipalities, including Forks, Bushkill and Moore and both area Hanover townships, have either passed or are in the discussion stages of developing a solar ordinance. Forks, which passed its ordinance after the Crayola project was approved, and Hanover in Northampton County define solar energy systems as accessory uses allowed in any zone, whether they are powering residential or non-residential properties.
They also set down restrictions regarding matters such as setbacks from property lines, size and height of panels and location on property.
But that doesn’t mean zoning officers will rule that a proposed solar farm constitutes an accessory use.
“One of the problems is solar panels and wind turbines and geothermal are technology that have come along only recently, and zoning ordinances haven’t kept up with them,” said Dave Berryman, a senior planner with the Lehigh Valley Planning Commission. “Municipalities are arguing whether it’s an accessory or permitted use. I’m not sure how that’s going to play out.”
That’s why the state Association of Zoning Officials is encouraging municipalities to not wait until a project comes forward before adopting an ordinance for alternative energy. The Lehigh Valley Planning Commission is in the process of developing model ordinances to address them.
“This is something that’s going to keep coming up because there’s great money available for solar and wind,” Berryman said. “It’s sort of a work in progress in terms of regulations.”
As the Northampton and Nazareth school districts move forward, one thing is certain: Residents don’t want either project because they say it will be an eyesore and hurt their property values. The districts’ case – that it will give them fixed, below-market energy prices, provide an educational component for children and allow the schools to have zero harmful emissions – hasn’t done much to sway residents’ minds.
Their opposition though, won’t help determine whether either solar farm is ultimately built. That decision may one day be made by the courts.
“The issue of what is a principal and accessory use is one of the toughest for zoning officers no matter what,” Ehlinger, who is also Doylestown’s zoning officer. “It doesn’t surprise me [the debate is] turning on that.”
•To give residents more information about the solar energy farm proposed in Lehigh Township, the Northampton Area School District is hosting an informational session at 6:30 p.m. Monday at 2014 Laubach Ave., Northampton.
Reporter Adam Clark contributed to this story.
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